Motion to Dismiss Already Decided

[heldenautie]

Florida Law, but is substantially similar to Federal. Paralegal (and law student) working on the team representing Defendant.

So in this case, a defendant filed an answer and counterclaim for breach of contract, unjust enrichment, and fraud. Plaintiff filed a 12b6 motion on the basis that (1) the breach of K claim had two contracts that needed to be separated out, (2) the unjust enrichment claim incorporated by reference the breach of contract claim, and (3) the fraud claim was invalid because the fraud claim was essentially a tort recasting of the breach of K claim. Court dismissed out breach of K claim and the unjust enrichment claim with leave to amend, but denied to dismiss out the fraud claim. Defendant amended. Plaintiff did a 12b6 again, which included dismissing out the fraud claim for pretty much the exact same reason as the first 12b6.

Is this collateral estoppel? Or is it something else with a name? Or do we just sit here and say that Plaintiff is wasting judicial resources?

 

[Just Blue]

Florida Law, but is substantially similar to Federal. Paralegal (and law student) working on the team representing Defendant.

So in this case, a defendant filed an answer and counterclaim for breach of contract, unjust enrichment, and fraud. Plaintiff filed a 12b6 motion on the basis that (1) the breach of K claim had two contracts that needed to be separated out, (2) the unjust enrichment claim incorporated by reference the breach of contract claim, and (3) the fraud claim was invalid because the fraud claim was essentially a tort recasting of the breach of K claim. Court dismissed out breach of K claim and the unjust enrichment claim with leave to amend, but denied to dismiss out the fraud claim. Defendant amended. Plaintiff did a 12b6 again, which included dismissing out the fraud claim for pretty much the exact same reason as the first 12b6.

Is this collateral estoppel? Or is it something else with a name? Or do we just sit here and say that Plaintiff is wasting judicial resources?

Bad form posting this on the net. The attorney of record should know the answer...ask him/her. This is really a terrible start to your law career.

 

[Proserpina]

Bad form posting this on the net. The attorney of record should know the answer...ask him/her. This is really a terrible start to your law career.

Oh my God no kidding!

The defendant AND the attorney should be horrified!

And if it's homework ... well, that's almost as bad.

 

[latigo]

. . . . . Is this collateral estoppel? [sic] Or is it something else with a name? . . . .

I understand your question. I just don't care for the way you have phrased it. "Collateral estoppel" is not an object. It is a principle or theory of law of preclusion; somewhat similar to the preclusion principle of res adjudicata.

If you are asking whether collateral estoppel should apply to defeat the plaintiff 's 12(b)(6) motion to dismiss, in my opinion and taking what you have given, yes.

PROVIDED that is, that the amended counterclaim serves only to delete those counts previously dismissed and does not introduce new allegations stating or tending to state an additional claim upon which relief can be granted. In which case the motion would simply be a duplication of the first and could be seen as a delaying tactic.

The defendant might also consider seeking sanctions under F. S. 57.105 - Florida's version of Rule 11.

Good luck in your law studies. It ain't easy, is it?

 

[quincy]

... Good luck in your law studies ...

I think we need to wish the defendant better luck ... especially if this is a real case heldenautie is working on and not "law studies."

heldenautie should know that all that s/he does as a paralegal as it relates to attorneys' cases needs to be done under the direction and supervision of a licensed attorney. I can almost guarantee that no licensed attorney in Florida would be supervising the paralegal in the posting of his/her client's case on an internet forum.

A link to Florida Legal Ethics (see Rule 5.3:300 et seq): https://www.law.cornell.edu.ethics/fl//narr/FL_NARR_5.HTM